December 14, 2002

Getting to the root of property damage

What
happens when your neighbour's tree and tree roots damage your property?
That's the question Trevor Johnson is facing in the backyard of his
North York home.

A large maple tree is growing
on his neighbour's property very close to the property line. Johnson
purchased the house about six years ago and shortly afterward became
concerned about the root structure of his neighbour's giant tree.

At that time, the roots of
the tree were pushing Johnson's patio stones upward, and the girth of
the tree was causing the fence between the properties to bow inward
toward his property.

Since then, the problem has
gotten progressively worse. The patio stones are much higher than they
were in the past, and a four-foot concrete block wall surrounding the
patio area is also buckling upward.

Johnson and his neighbour get
along well, but he e-mailed me recently to ask if I could write about
who bears the legal responsibility for any damage the tree might cause,
or the costs of repair.

Every first-year law student
learns about the case of Rylands vs. Fletcher, a decision of the British
House of Lords in 1868. A water reservoir on Fletcher's property gave
way and escaping water flooded the nearby coal mine being operated by
Rylands.

In awarding damages to
Rylands, the House of Lords ruled that a person who allows something on
his or her land to escape onto a neighbour's property and cause harm
will be responsible for the losses.

Another British court case,
going back to 1815, established the rule that a landowner can cut away
overhanging boughs of a neighbour's trees.

Later British cases
established the rule that the owner of land on which a tree grows is
liable in nuisance if the roots or branches encroach on adjoining land
and cause damage.

Fast-forwarding to Canada in
the 20th century, I came across a 1976 case involving damages caused by
a neighbour's tree roots on Beemer Ave., in Mississauga.

Eugenie Mendez complained
that the roots of 14 Lombardy poplar trees on the Palazzi property next
door had ruined her lawn, rock garden and patio, and were threatening
the septic tank, weeping tiles and foundations of her home. A tree
expert from the Royal Botanical Gardens in Hamilton testified at the
trial that poplar roots are aggressive, and can damage sidewalks, roads,
septic tanks and weeping tiles.

The judge found that the
Palazzi trees did in fact destroy the Mendez lawn and disrupted the
patio. The court awarded the plaintiffs $500 damages for nuisance, and
partial court costs.

Judge A. H. Hollingworth went
out of his way, however, to note in his judgment that the case was not
to be construed as permitting recovery to everyone whose yard is
disturbed by tree roots. "In these cases," he said, "so much depends on
the particular facts...in evidence."

He did admit, however, that
"it is the kind of case that should never have been litigated."

Despite the warning that it
should not be referred to as a precedent, the Mendez case has been
mentioned in two subsequent Canadian cases.

In a 1984 case involving
willow roots on Humbervale Blvd., in Etobicoke, the plaintiffs were
awarded $2,760 plus costs. The following year, poplar trees were at the
root of a court case in Winnipeg where the plaintiff won $19,000 in
damages.

With the legal rules clearly
set out, how can Trevor Johnson and his neighbour solve their problem?
Based on the Mendez vs. Palazzi case, the neighbour may well be liable
for the damages.

How do they get rid of the
offending maple tree roots? The simple answer, it seems, is to cut the
tree down but that answer only applies in the former city of North York.

In the old cities of
Scarborough and Etobicoke, and the pre-1998 boundaries of the City of
Toronto, it is necessary to obtain a permit to remove, cut down or
injure any tree with a diameter exceeding 30 cm (12 inches) on private
property. The measurement is taken at 1.4 m (4 1/2 feet above ground
level). Additional restrictions apply to smaller trees.

Even if the tree is diseased
or dead, it may only be removed with a certificate from a certified
arborist and the written approval of the Commissioner of Economic
Development, Culture and Tourism. It might be cheaper to wait until the
tree falls over and have the insurance company pay for the damage.

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.